Case Western Reserve Law Review
Volume 18 | Issue 4
1967
Miranda v. Arizona--The Use of Inadmissible
Evidence for Impeachment Purposes
Stanley B. Kent
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Stanley B. Kent, Miranda v. Arizona--The Use of Inadmissible Evidence for Impeachment Purposes, 18 Cas. W. Res. L. Rev. 1177 (1967)
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1967)
1177
Miranda v. Arizona-The Use of
Inadmissible Evidence for
Impeachment Purposes
Stanley B. Kent
Although the Mirandadecision primarilyfocused upon the inadmissibility into evidence of a defendant's illegally obtained confession, a different but closely related problem of impeachment of the defendant-witness, briefly touched upon by Miranda, is the subject of this article.
Illegally obtained evidence is inadmissible in the prosecutor's case in
chief, and the author argues that even though this evidence is admissible
for certain collateralmatters, defendants are and should be immune from
impeachment by otherwise inadmissible evidence when the effect is to
contradict the exculpatory natureof their direct testimony. Mr. Kent also
criticizes admissions on collateralmatters and "minor points," which authorize the use of illegally obtained evidence and invite a disregard of
United States Supreme Court mandates rendering illegal acquisition of
evidence profitless under all circumstances.
M HEN A RULE of evidence is applicable solely to the federal
court system, the federal cases construing that rule generally
are of little interest to the individual states. Thus, state courts that
permitted the introduction of illegally seized evidence under any
circumstances were likely to
MhAiTg
OR
(A.B.,
University of
Michigan, LL.B., Western Reserve Uni-
regard federal definitions of
probable cause as exercises in
But when the United
States Supreme Court in Mapp
v. Ohio' announced that the exclusionary rule extends to the
state as well as to the federal
system, scores of federal cases defining probable cause immediately
became relevant and were often decisive in state prosecutions. In
time, no doubt, the states will acquire considerable experience in
administering the criminal evidence rules recently imposed upon
them. Nor is there reason to believe that state judges are less caversity), an Assistant Attorney General
of Ohio from 1960 to 1962, is a practicing attorney in Cleveland, Ohio, and a2
member of the Ohio Bar.
casuistry.'
1 Before 1960, fewer than half of the states had punitive provisions in their law
relating directly to unreasonable searches and seizures. See Mapp v. Ohio, 367 U.S.
643, 652 (1961). But it would have been incorrect to assume that because punitive
measures could have been taken in many states against officers who acted in violation
of these provisions, the evidence illegally procured was thereby necessarily excluded in
a subsequent trial. Twenty-four states held illegally seized evidence admissible in
criminal trials. See Elkins v. United States, 364 U.S. 206, app. 224-25 (1960).
2 367 U.S. 643 (1961).
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1178
[Vol. 18: 1177
pable than their federal brethren of interpreting and applying Supreme Court decisions. For the present, however, the states must
look to federal interpretations, if only for the practical reason that
the federal judiciary has had to contend with these rules and their
exceptions for years.
I.
ANCILLARY EFFECT OF MIRANDA
Miranda v. Arizona3 has created results similar to those following Mapp: a series of federal impeachment cases previously ignored
by the states have now become an integral part of their criminal
jurisprudence. The comment on Miranda, especially the early,
acrimonious remarks predicting the imminent collapse of law and
order in the United States, has focused on the inadmissibility into
evidence of a defendant's statement or confession in the prosecution's case in chief.' This is natural enough, for Miranda and its
three companion cases focused upon this precise issue. The federal
impeachment cases are addressed to a different but closely
related
problem: assuming that a statement given to the police by the defendant is inadmissible, can it nevertheless be used for impeachment
purposes if the defendant elects to testify and his testimony conflicts
with the statement? Miranda itself barely touches upon this quesdon. Until the Supreme Court confronts it directly, the answer
must be sought in the federal cases that followed, interpreted, and
applied Walder v. United States.5
A.
Impeachment Process
There is, as suggested, a terse reference to impeachment in Miranda. The Court, fully aware that this opinion would be closely
examined for exceptions and omissions, took special precautions to
discourage attempts at fine distinctions between different types of
statements by asserting:
8 384 U.S. 436 (1966). Miranda was bracketed with three other cases, all of which
carry the same Supreme Court citation because they were argued, considered, and decided as a group.
4 Among the most acrimonious and certainly the earliest comments are the dissenting opinions in Miranda itself: "I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large." Id. at 504
(Harlan, J., dissenting); "In some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which
produced him, to repeat his crime whenever it pleases him." Id. at 542 (White, J.,
dissenting).
5 347 U.S. 62 (1954).
19671
MIRANDA V. ARIZONA
1179
The warnings required and the waiver necessary... are ... prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are
direct confessions and statements which amount to "admissions"
of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate
himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may
be drawn between inculpatory statements and statements alleged to
be merely "exculpatory." If a statement made were in fact truly
exculpatory it would, of course, never be used by the prosecution.
In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at a trial or to
demonstrate untruths in the statement given under interrogation
and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be
used without the full warnings and effective waiver required for
any other statement. In Excobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as
to himself.6
Evidently, then, the principal reason for the Court's refusal to
except even exculpatory statements from the preconditions for admissibility is its belief that a statement intended to be exculpatory
often proves later to be quite inculpatory.' By way of illustration
the Court cited the perils of impeachment.'
On the other hand, it
can be argued that if there had been an intention to absolutely forbid the use of inadmissible statements for impeachment purposes,
the opinion would have so stated. But the Court was silent as to
this point, and it can only be taken to mean that the impeachment
rules forged by the Walder9 line of cases are neither abrogated nor
weakened.
B.
Admission of Exculpatory Statements
A second question is under what circumstances might an exculpatory statement - that is, a statement absolving one from guilt
become damaging. If a suspect is taken into police custody on
a homicide charge and gives a statement to the effect that he did
not commit the crime and, moreover, that he never even met the
6 384 U.S. at 476-77.
7 In Escobedo v. Illinois, 378 U.S. 478 (1964), the defendant, at the police station,
accused another man of committing the crime. The Supreme Court pointed out that
the defendant, in this way, had, for the first time since he had been taken into custody,
admitted to some knowledge of the crime. Id. at 482-83.
8 384 U.S. at 477.
9
Walder v. United States, 347 U.S. 62 (1954). See text accompanying note 5
supra.
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victim, the statement is unquestionably meant to be exculpatory.
At this stage it undoubtedly is. At trial, in addition to the testimony which links the defendant to the homicide, the prosecutor
probably will present witnesses who can testify to having seen the
defendant and the victim together on several occasions.
The defendant will then be faced with the choice of testifying
in his own behalf. If he takes the stand, he will vigorously deny
the charge but will admit that he had known the deceased victim.
If he may now be cross-examined and impeached on the conflict
between his testimony and his previous statement, his credibility
will be severely, and perhaps fatally, damaged. Merely having
known the victim is surely not incriminating, but the turn of events
would have radically altered the originally exculpatory character of
the defendant's statement. It has now become a powerful weapon
in the hands of the prosecutor and has exposed the defendant as a
liar. Notwithstanding the latter's strenuous effort to rehabilitate
himself by protesting that he was confused, misled, or frightened
at the police station, his untruthfulness on this collateral point may
cause the jury to disbelieve him altogether. Presumably, this is
what the Miranda Court had in mind when it spoke of "guilt by implication."
In the situation described, there is no question that impeachment would be permitted if the Miranda rules had been heeded
when the statement was taken. The Walder line of cases'" becomes
significant when these strictures are not heeded.
II.
THE WALDER LINE OF CASES
Walder itself is a peculiar case. The defendant was indicted in
1950 on drug charges. Before trial, he moved to suppress the physical evidence taken from him on the ground that the search and
seizure violated Weeks v. United States." His motion was granted.
Deprived of its principal evidence, the government was forced to
dismiss the indictment.
In 1952, the defendant was again indicted on drug charges, the
alleged acts, however, being later than and distinct from those in
the 1950 indictment. On direct examination, the defendant stated
that he never had possessed narcotics, and he repeated this assertion
10 Ibid.
11232 U.S. 383 (1914).
This case was limited in its application to the federal
court system and federal government agencies. Nearly a half-century elapsed before, in
Mapp v. Ohio, 367 U.S. 643 (1961), the exclusionary principle of Weeks was extended
to the states.
MIRANDA V. ARIZONA
19671
1181
on cross-examination.' 2 The government, over objection, then rebutted the defendant's testimony with evidence obtained in the 1950
raid. The defendant was convicted, and the Supreme Court ultimately granted certiorari because the case raised a novel aspect of
the Weeks rule.'"
The Court's opinion, written by Mr. Justice Frankfurter, centered on the direct testimony aspect of the trial, emphatically stating
that a defendant is constitutionally guaranteed the right to deny all
the elements of the crime charged against him. 4 Such a denial
does not permit the government to rebut the defendanes testimony
with evidence illegally obtained and therefore not available for its
case in chief. But, in the present situation, the defendant did not
merely deny commission of the crime; rather, he made a "sweeping
claim!"' that he had never possessed or dealt in narcotics. To bar
rebuttal in these circumstances would allow the defendant to resort
to "perjurious testimony"'" in reliance on the incapacity of the government to attack his credibility. The Court continued:
It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another
to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage and provide himself with a shield against contradiction of
his untruths .... 1
A.
Edible Apples of the "PoisonedTree"
There is more to be said about Walder, but this much is already
dear: evidence procured by judicially condemned methods may still
be admissible in some circumstances and for some purposes. The
imagery so often encountered in commentary on Mapp and Miranda
is more colorful than accurate; apparently a "poisoned tree" can
produce a few edible apples.
The Walder Court was satisfied that the facts before it were to
be "sharply contrasted"' 8 with those in Agnello v. United States, 9
12 347
U.S. at 63-64.
13
Id. at 64.
14
Id. at 65.
15 ibid.
16 Ibid.
17 Ibid.
181d. at
66.
19269 U.S. 20 (1925). In Agnello, the Court referred to this passage in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1919): "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence
so acquired shall not be used before the court but that it shall not be used at alL" 269
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[VoL 18: 1177
which had been cited by the defendant. The contrast is said to be
found in the sparse direct testimony of the Agnello defendant who,
unlike the defendant in Walder v. United States,20 had not waived
his protection from impeachment.
That the two cases differ in this respect is unarguable, but it
seems not to be the crucial difference. More to the point is the
predictable effect of the impeaching evidence. In Walder, even if
full credence had been given to the government's claim that its
agents had found narcotics in the defendant's possession two years
earlier, all the jury was necessarily bound to do was find him less
than impeccably truthful. But because these narcotics were not the
subject of the indictment, acquittal was still possible. In Agnello,
on the contrary, the impeaching testimony related directly to the
indictment; if it were believed, the jury had no reasonable alternative to a finding of guilty. In short, in one instance the evidence
was inculpatory, in the other it was not.
B.
Standards for Admitting Evidence
This interpretation of Walder has been adopted by later federal
courts even though it departs from the rationale of that cases' As
the standard for judging admissibility of evidence, this test is easier
to apply than one which demands close scrutiny and analysis of the
defendant's direct testimony. Also, the later cases make no distinction between different forms or types of illegally acquired evidence,
that is, whether the evidence is physical or in the form of written
or spoken words.2"
2" the conditions
Before Miranda,
which permitted a statement
to be introduced into evidence had not been defined with precision.
The Supreme Court cases spoke of the "totality of circumstances"24
U.S. at 35. If the last phrase is taken literally, impeachment vis-i-vis such evidence is
barred, too. Obviously, however, later courts have not taken it literally.
20 347 U.S. 62, 66 (1954).
21
E.g., United States v. Curry, 358 F.2d 904, 909-12 (2d Cir. 1966); Inge v. United
States, 356 F.2d 345, 349-50 (D.C. Cit. 1966); White v. United States, 349 F.2d 965,
967-70 (D.C. Cit. 1965); Johnson & Stewart v. United States, 344 F.2d 163, 165-66
(D.C. Cit. 1964); Tate v. United States, 283 F.2d 377, 379 (D.C. Cit. 1960).
22
There is a basis for distinguishing between evidence illegally seized and statements that violate the standards established in Miranda. The latter are excluded by the
fifth amendment which, by its terms, is directed at the exclusion of evidence. The
fourth amendment contains no such direct provision, and the courts have said repeatedly
that the exclusion of illegally seized evidence is intended to deter police from unconstitutional conduct.
2
3 Miranda v. Arizona, 384 U.S. 436 (1966).
24 The "totality of circumstances" rule was enunciated in Haynes v. Washington,
373 U.S. 503 (1963). See also Leyra v. Denno, 347 U.S. 556 (1954).
19671
MIRANDA V. ARIZONA
1183
surrounding the taking of a statement; therefore, a case-by-case
determination of admissibility was necessary. Escobedo v. Illinois2"
was a long stride towards the development of a more exact standard, to say nothing, of course, of the case's specific extension to the
states of prohibitions once considered exclusively federal. With
Miranda, there is very little room left for speculation on standards
for case-in-chief admissibility. 6
The cases that follow in this discussion were decided before
Miranda and in the wake of Walder. The policy considerations
that motivated the Miranda decision may one day lead the Court to
announce that evidence proscribed in the case in chief is proscribed
for all purposes; if so, even the distinction between inculpatory
statements and those which merely impeach credibility will become
moot. But, to reiterate, it is assumed that this is not presently the
law and that Miranda's specific pronouncements govern only the
narrow fact situation in Miranda and the cases joined with it, that
is, the use of a statement in the case in chief. It is therefore further assumed that labeling an illegally acquired statement inculpatory remains decisive.
In White v. United States" the defendant, subsequently convicted of murder, testified that hP had acted in self-defense when
the deceased had come menancingly towards him with his hand in
his pocket. There was no such claim in his statement following
his arrest, but use of this point to impeach the defendant was held
reversible error.2 8
The court said that "Inadmissible evidence is not rendered admissible merely because the defendant testified in his own behalf."29
It was further held that as the statement contradicted his only defense, it was dearly improper for impeachment."
The White opinion referred to Johnson & Stewart v.United States,8" particularly to
that portion of the opinion that explains the real sense of Walder"
25 378 U.S. 478 (1964).
2
6The defendant must be warned that he has the right to remain silent and that
anything he says can be used against him; and he must be informed that he has the
right to the presence of an attorney and that if he cannot afford one, an attorney will
be appointed for him. Although a knowing and intelligent waiver may be made, the
burden of proving such waiver rests with the prosecution. Miranda v. Arizona, 384
U.S. 436, 479 (1966).
27 349 F.2d 965 (D.C. Cir. 1965).
28 Id. at 968.
29 Id. at 967.
30 Id.at 968.
31344 F.2d 163 (D.C. Cir. 1964).
= Walder v. United States, 347 U.S. 62 (1954).
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"Moreover, the evidence used purportedly to impeach him was a
confession of the very charge on trial, raising a dear likelihood
of prejudice not present when, as in Walder, the impeaching evidence is unrelated to the indictment.""8 It is therefore obvious that,
in the future, defendants will be immunized from the impeachment
process if the effect of it would be to contradict the exculpatory
nature of their direct testimony.
An especially illuminating case is United States v. Curry,"4 in
which the defendant's statement to Federal Bureau of Investigation
agents concerning his associations with accomplices and his wearing
of a false mustache was in conflict with his direct testimony at trial.
The trial court permitted impeachment on both matters, and the
appellate court approved the ruling on the ground that these parts
of the statement were "collateral to the ultimate issue of guilt.""s
C.
Other Aspects of Impeachment
Curry touches on two other aspects of impeachment likely to
creep into later cases. While adhering to the principle that inadmissible statements on non-inculpatory matters may generally be
used for impeachment, it suggests that there are limitations to this
principle. If the statement is coerced by methods involving trickery
or physical force, it may be inadmissible even for impeachment on
issues collateral to guilt. But if the flaw in the taking of the statement is of a more technical nature, that is, of a nature not shocking
to normal concepts of due process, it retains its admissibility for impeachment - but, of course, pertains only to collateral questions!'
Curry also comments on the instructions to be given to the jury.
In Walder, Mr. Justice Frankfurter stated that the trial court had
carefully instructed the jury that the impeaching testimony was to
be received and considered only for the purpose of attacking the
credibility of the defendant and not as evidence of guilt." It is not
clear whether the instruction was requested by the defendant in
Walder, although Curry holds that the court is not bound to admon33
344 U.S. at 166.
358 F.2d 904 (2d Cir. 1966).
Id. at 910.
8
6 The court found, as a matter of fact, that the statement was even admissible in
the government's case in chief so, a fortiori, it was admissible for impeachment. But,
if a statement were found to have been "unconstitutionally coerced," it would be inadmissible even for impeachment. Id. at 912. The absence of counsel at the interrogation is not an unconstitutional coercion, the opinion stated, but this case was decided
fourteen months before Miranda.
7 Walder v. United States, 347 U.S. 62, 64 (1954).
84
35
MIRANDA V. ARIZONA
1967]
1185
ish the jury on this point unless there is a specific request by the
defendant 8
D.
Impeachment on CollateralMatters
In the Walder line of cases, none presents more dramatic and
irreconcilable conflicts between a defendant's direct testimony and
his earlier statements than does Inge v. United States. 9 The defendant said at trial that the deceased had a knife, that he himself
had been injured, and that he had no recollection of injuring the
deceased; his pre-trial statement to the police was to the contrary on
each point. The impeachment that followed was held on appeal
to be reversible error ° After restating the rule that only collateral
matters may be impeached and not those that pertain to the crux of
the indictment, the court added that only inconsistencies on "minor
points" or "lawful proper acts" 41 can be assailed by an otherwise
inadmissible statement because untruthfulness in these respects does
not tend to establish guilt.
Inge successfully refuted the government's contention that the
defendant had had ample opportunity to rehabilitate himself and
that the jury could very well have accepted his explanation of the
inconsistencies. Such a finding, the court held, would be mere speculation.42
A few courts dealing with impeachment in this context have
paused to consider the dash of values involved in their rulings.
Such a case is Tate v.United States,3 in which the court speaks of
the proscription as a "prophylactic measure" but adds that the effect
of the proscription on the use of illegally obtained evidence interferes with the historical function of a trial as a search for the truth.
The balance is struck, it is evident, by separately classifying inadmissible evidence as: (1) "minor" or "collateral," in which event
its use as a means of impeaching the credibility of the defendant is
fully authorized; or (2) as "inculpatory," in which event it is as ab38
United States v. Curry, 358 F.2d 904, 912 (2d Cir. 1966). The trial court had
not instructed the jury that the rebuttal evidence was admitted for impeachment only,
but this was not held to be error because no request for such instruction bad been made
by the defendant.
39 356 F.2d 345 (D.C. Cir. 1966).
40 Id. at 349.
41 Ibid.
42 Id. at 350.
43 283 F.2d 377 (D.C. Cir. 1960).
44 ld. at 379.
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(Vol. 18: 1177
solutely prohibited as when the prosecutor is presenting his case
initially and the defendant has not yet approached the witness chair.
It is a simple enough formula and ought not to confuse trial courts.
But it is suggested that only the most careful analysis of the mental
processes of juries - or for that matter, of judges when they are
the triers of facts - can indicate whether the formula is sound.
The troublesome question that remains is whether a defendant, revealed as a liar on "minor" matters, is still sufficiently credible to
be believed on "major" matters. Furthermore, when it is remembered that the goal of the Supreme Court opinions in both Miranda45 and Mapp46 was to make illegal acquisition of evidence
profitless, continued authorization of the use of such evidence, even
for the limited purpose of impeachment of the defendant's credibility, invites continued disregard of the standards prescribed by
those cases.
Measured by time, only a dozen years passed between Walde 7
and Miranda, but measured by more sensitive and sophisticated indices, the two cases are separated by totally different concepts of the
impact of the Constitution on the minutiae of criminal procedure.
One need not speculate to any grea~t extent to predict that there will
soon be a re-examination of the cases, state and federal, which, like
Walder, maintain that there is still some evidentiary value in evidence illegally acquired.
III.
CONCLUSION
Finally, consider the tragicomic facts of United States v. Poe.4"
The trial court ruled the defendant's statement inadmissible for the
Government's case in chief. The defendant then asked the court
whether, if he testified, the statement could be used for impeachment, but the court declined to make its ruling in advance." Yield45
Miranda v. Arizona, 384 U.S. 436 (1966).
Mapp v. Ohio, 367 U.S. 643 (1961). This "purpose" is not as dearly explicated
in Miranda as it was in Mapp, although there can be doubt that police will not bother
to engage in custodial interrogation techniques that are of no value in ensuing trials.
However, in Mapp, the Court candidly admitted that the only effective means of prohibiting unconstitutional searches and seizures is to make their product inadmissible.
On the other hand, the same consideration influenced the Supreme Court when it decided Weeks v. United States, 232 U.S. 383 (1914); in deciding Walder v. United
States, 347 U.S. 62 (1954) forty years later, the Court nevertheless specifically authorized the use of illegally seized evidence for impeachment in some circumstances.
46
47
Ibid.
48352 F.2d 639 (D.C. Cir. 1965).
49
Ibid.
1967]
MIRANDA V. ARJZONA
1187
ing to the advice of his lawyer who predicted that it would indeed
be admissible and ruinous to his chances of acquittal in the process,
the defendant chose not to testify and was found guilty. One year
later a remorseful court, in granting a new trial on the application
of the defendant's new counsel, determined that the ruling should
have been made when requested and that under the Walder decision, the statement would be excluded.5" Until the Supreme Court
squarely answers the question raised in this discussion, other defendants are likely to face Mr. Poe's agonizing dilemma.
50 This case is not dear authority for the proposition that a court must rule in advance of the defendant's taking the stand in his own defense. All that was actually
decided was that the trial court had not abused its discretion in granting a new trial.
Id. at 640.